Opinion
Case Number 00-10346-BC
July 30, 2003
The plaintiff filed the present action on September 14, 2000 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment seeking a remand and an award of benefits. The defendant filed a motion for summary judgment requesting that the decision of the Commissioner be affirmed.
Magistrate Judge Binder filed a Report and Recommendation on June 5, 2001 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed tardy objections to the recommendation and this matter is now before the Court.
The Court has reviewed the file, the Report and Recommendation, and the plaintiff's objections to the recommendation, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections mainly reiterate the contentions made in her motion for summary judgment that the Administrative Law Judge incorrectly concluded that the plaintiff was able to perform her past relevant work at the step-four stage of the five-step sequential analysis, described in more detail below, coupled with arguments that the Magistrate Judge failed to address some of the plaintiff' contentions made in her brief in support of the summary judgment motion. Specifically, the plaintiff contends that the Magistrate Judge did not provide a complete overview of the administrative record, but instead selected only those portions that supported the Administrative Law Judge's determination. The plaintiff also states that the Magistrate Judge mischaracterized portions of the medical records concerning the plaintiff's cardiac health. The plaintiff also objects to the Magistrate Judge's presumed failure to give due consideration to records of medical tests that were conducted after the expiration of the plaintiff's insured status on the question of the extent of her impairments during the relevant period. The plaintiff also claims that her past relevant work was mischaracterized, which led to an improper analysis of her ability to perform her past relevant work in light of her residual functional capacity. The plaintiff also objects that the Magistrate Judge did not deal in detail with the plaintiff's arguments relating to the administrative record and the Administrative Law Judge's finding that her testimony regarding her own complaints and physical limitations was not fully credible. Accordingly, the plaintiff concludes, a determination should have been made that she could perform work at a sedentary level or less, and therefore the Commissioner's Grid Rules would yield a finding that the plaintiff is disabled if it is presumed that none of her skills are transferrable.
The plaintiff, who is now sixty-five years old, applied for a period of disability and disability insurance benefits on June 28, 1997, when she was sixty years old. She had worked for seventeen years as a bar maid and manager for a private club, followed by fifteen months as a dining room manager at a restaurant and bar. She last worked on April 22, 1991, which was the date she alleged her disability began.
In her application for disability insurance benefits, the plaintiff alleged that she was disabled as a result of angina and coronary artery disease, shortness of breath, arthritis, sciatica, and colitis. Her claim was initially denied, and the denial was upheld on reconsideration. The plaintiff then appeared before Administrative Law Judge (ALJ) Anthony B. Roshak on August 4, 1999 when she was sixty-one years old. ALJ Roshak filed a decision on September 3, 1999 in which he found that the plaintiff's insured status continued up to but not after December 31, 1996. The plaintiff does not dispute this finding. The plaintiff does challenge the ALJ's determination that she was not disabled, however. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since April 1991 (step one). The ALJ then found that the plaintiff suffered from neck and back pain; arthritis affecting the wrists, knees, ankles and neck; a heart condition; and colitis. However, the ALJ never made a specific determination that any of these impairments were "severe" within the meaning of the Social Security Act (step two). However, since a finding that none of these impairments was "severe" would have terminated the analysis and resulted then and there in a finding against the plaintiff, see 20 C.F.R. § 404.1520(a), (c), the Court infers from the ALJ's continuation through steps three and four of the analysis that the ALJ determined that at least one, if not all, of the plaintiff's impairments was "severe." The ALJ did specifically find that none of the plaintiff's impairments by themselves or in combination met or equaled a listing in the regulations (step three); and he determined that the plaintiff could perform her previous work as a bar maid and restaurant manager (step four). The ALJ found that the plaintiff's previous work was semi-skilled and required a light exertional level, and that she had acquired vocational skills that were transferrable to other light-duty positions, such as a light order clerk and retail manager. A vocational expert testified that these positions were semi-skilled, but required only sedentary exertional effort. See Tr. at 251.
The plaintiff had testified at the administrative hearing that she stopped working in 1991 because she could not tolerate the increased job duties imposed on her by her employer, particularly from an exertional standpoint, and that she was having chest pains and back problems and could not lift the supplies, as was expected of her. She stated that during the period between her alleged onset date and her date last insured, she could lift only five pounds, could not push or pull, had difficulty concentrating, could not kneel, crawl or crouch, had difficulty handling and holding items, required frequent trips to the bathroom everyday because of her colitis, had difficulty turning her neck because of pain and eventually required a soft collar occasionally, could not bend over and lift things because of back spasms, frequently experienced shortness of breath and chest pains, and required frequent naps during the day because of her fatigue. The vocational expert testified that if the plaintiff's description of her limitations was accepted, and assuming that the plaintiff's high school education and considering her age, the plaintiff could not perform her past work. However, the ALJ found in his written decision that the plaintiff's complaints and descriptions of her limitations were not fully credible in light of the medical evidence in the record and her own description of her activities before and in the course of the administrative hearing.
It is a fundamental principle that the plaintiff bears the burden of proving entitlement to benefits under Title II of the Social Security Act, which means that the plaintiff must establish that she suffers from a disability, as that term is defined in the Act. See Boyse v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" means:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A). A claimant suffers from a disability "only if his physical or mental . . . impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(1)(B). The concept of disability, then, relates to functional limitations. Although these functional limitations must, of course, be caused by a physical or mental impairment, in the end, "[i]t is an assessment of what [the claimant] can and cannot do, not what she does and does not suffer from." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (referring to assessment of residual functional capacity).
The Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Lashley v. Sec'y of Health Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The reviewing court must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence in the record exists. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Thus, where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec'y of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which decisionmakers can go either way, without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (internal quotes and citations omitted). Thus, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
However, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of the evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Id. at 388 (internal quotes and citations omitted). See also Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D. Mich. 2000).
The plaintiff complains that the Magistrate Judge down-played the descriptions in the medical records of the plaintiff's coronary condition. The ALJ noted that the plaintiff had complained of and been treated for chest pains, and had various tests to determine her cardiovascular sufficiency, but noted, in the end, that the plaintiff underwent heart catheterization on two separate occasions that failed to demonstrate any significant obstructive coronary disease. The plaintiff points to the results of a thallium stress test dated March 22, 1995 indicating suspicious findings resulting from decreased reperfusion of the anterior wall of the left ventricle "consistent with a region of jeopardized viable myocardium." Tr. at 117. However, the electrocardiograph portion of the test was negative for ischemia, and a cardiac catheterization conducted less than one week later dispelled the suspicion raised by the previous, and less diagnostic, nuclear imaging study. The cardiac catheterization report disclosed a morphological abnormality (the distal portions of the plaintiff's left anterior descending coronary artery tapered down to an abnormally small diameter). Dr. Norman Abbott, one of the plaintiff's treating physicians, stated: "Today's catheterization fails to reveal any significant obstructive coronary disease." Tr. at 120. The same finding was made in a heart catheterization report of February 4, 1997.
The plaintiff also criticizes the Magistrate Judge's description of the Holter monitor report of November 1, 1996, in which the Magistrate Judge observed that sinus rhythms were exhibited with patterns of premature ventricular contractions and ventricular ectopy. It is true that the report shows periods of both slow and fast heart rates, and notes that there is a "significant amount of ventricular ectopy." However, an ectopic condition is one in which a morphological structure is not in its normal position, and the Holter monitor report notes that "the significance of [the ventricular ectopy] is unknown." Tr. at 138. Moreover, no physician has connected any functional limitation to this finding.
Similarly, the plaintiff points to an entry in the records of Dr. Allen Klibanoff concerning the plaintiff's colitis. The plaintiff's attorney quotes the entry as stating: "She continues to have her usual bowel pattern of three to five loose stools per day . . . ASSESSMENT: 1. . . . Irritable bowel syndrome (AR 153)." Pl.'s Br. in Support of Mot. S.J. at 7 (emphasis added in the plaintiff's brief). In fact, Dr. Klibanoff's complete entry, dated December 11, 1995, states:
SUBJECTIVE: She had one episode of transient chest pain when walking up and down a hill in Michigan during the summer[,] which responded to Nitroglycerin. She has had no further such episodes. She continues to have her usual bowel pattern of three to five slightly loose stools per day without blood. Otherwise she feels quite well. She quit smoking and has been exercising at a gym for an hour three times a week. She continues on Cardizem, Estrace, Provera and p.r.n. Lasix. . . .
ASSESSMENT:
1. Chest pain, more likely esophageal spasm than cardiac but I believe she had a recent cardiac catheterization. Irritable bowel syndrome.
Tr. at 153. The ALJ acknowledged the plaintiff's complaints of irritable bowel syndrome and gastroesophageal reflux disease, but noted that despite those complaints, the plaintiff did not lose any weight or show that she could not maintain adequate nutrition. See Tr. at 16. The plaintiff insists that her need to make frequent trips to the bathroom interfered with her ability to perform her work as a restaurant manager and bar maid, which required frequent lifting and carrying of up to ten pounds, and crouching from one-third to two-thirds of the work day. However, no physician commented on any functional limitation as a result of the plaintiff's colitis, and there are no medical records that document the extent of the limitation as the plaintiff has described it.
The plaintiff complains that the Magistrate Judge gave short-shrift to the plaintiff's orthopedic complaints. The ALJ acknowledged that the plaintiff was treating for arthritis and that her condition worsened in 1995. From July 1994 to August 1995 she treated at a chiropractic center for neck, shoulder, hip and back pain. She was evaluated by Dr. Mark Weber, an orthopedic specialist, in October 1995 and diagnosed with neuritis in both shoulders. Dr. Weber recommended strengthening and stretching exercises. Subsequently, Dr. Robert Nucci, also an orthopedic specialist, found degenerative disc disease in the cervical and lumbar spine in 1996 and 1997. However, Dr. Nucci evaluated the plaintiff on November 5, 1996 and found that she had normal ranges of cervical and lumbar motion and normal motor strength. X-rays revealed mild to moderate degenerative joint disease at the L4/L5 level, but there was no instability. There was severe degenerative joint disease at the L5/S1 level without instability, and mild reduction in bone mass. The plaintiff was given an epidural injection and referred to physical therapy. At physical therapy, the plaintiff reported that she had neck and back pain, and tingling and numbness that "comes and goes." Tr. at 201. She also stated that exercise reduced all of her symptoms, and that she had been walking two miles per day before she moved to Florida two weeks prior, and that she did not take any pain medication. Ibid. Upon examination, the plaintiff's cervical range of motion was normal, as was her forward lumbar flexion and extension. Approximately three weeks later, the plaintiff reported that she was walking at home twenty to forty-five minutes per day. Tr. at 204.
The ALJ noted that X-rays demonstrated only mild degenerative changes in the lumbar spine. The medical records contradict this finding, but they do not undermine the ALJ's further observation that the plaintiff did not "exhibit weight loss, muscle atrophy, or any other indicia of longstanding, debilitating pain, and she remained neurologically intact without any objective focal sensory, motor, or reflex abnormalities." Tr. 16-17. The ALJ based his decision regarding the plaintiff's credibility on the absence in the record of medical evidence that supported the severity of the plaintiff's own description of her complaints and limitations. Under 20 C.F.R. § 404.1529(b) (1995), the plaintiff must establish an underlying medical condition, and then show either (1) that objective medical evidence confirms the severity of the alleged pain arising from the condition, or (2) the medical condition, objectively determined, is at a level of severity which can reasonably be expected to give rise to the alleged pain. If the plaintiff satisfies this burden, the ALJ must then evaluate the intensity and persistence of the plaintiff's pain symptoms in light of objective medical evidence including the activity which precipitates or aggravates the plaintiff's symptoms, the plaintiff's daily activities, the intensity and duration of her symptoms, and medications, treatment and other means to relieve the symptoms. 20 C.F.R. § 404.1529(c) (1995).
The ALJ concluded, however, that the plaintiff overstated her disability due to pain and therefore he discounted her testimony. In evaluating a claimant's complaints of pain, the ALJ quite properly may consider the claimant's credibility. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Kirk v. Sec'y of Health Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). In assessing the credibility of a witness, personal observations are important. In fact, it is one of the reasons underlying the preference for live testimony. See 2 McCormick on Evidence § 245, at 94 (4th ed. 1992); cf. Ohio v. Roberts, 448 U.S. 56, 63-64 (1980). Thus, an ALJ, who has observed a witness' demeanor while testifying, should be afforded deference when his credibility findings are assessed. See Jones v. Comm'r of Social Sec., ___ F.3d ___, ___, 2003 WL 21658624, * 4 (6th Cir. July 15, 2003); Villarreal v. Sec'y of Health Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). The Court is not obliged to accept an ALJ's assessment of credibility, however, if the finding is not supported by substantial evidence. Beavers v. Sec'y of Health, Educ. Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978).
The Court agrees with the Magistrate Judge that substantial evidence supports the ALJ's credibility determination. Plaintiff's counsel suggests that some characterizations by the ALJ were unfair, such as his description of the plaintiff's "typical day." However, a review of the plaintiff's daily activity sheets and her testimony at the administrative hearing, see Tr. at 87, 238, does not support the plaintiff's polemical argument that the ALJ's description was a "far cry" from the plaintiff's actual activity. See Pl.'s Br. at 14. Plaintiff's counsel also criticizes the ALJ for "ungallantly" accepting the plaintiff's own testimony that she could walk "500 yards," which the plaintiff estimated as the distance across a parking lot from her car to a store. See Tr. at 239-240. Plaintiff's counsel remarkably claims that it is error to accept this testimony because "no reasonable person ever holds women to distance or direction guesses." Pl.'s Br. at 15. Casting aside the baselessness of this argument for a moment, the ALJ's observation nonetheless has record support inasmuch as the plaintiff reported to a physical therapist at a November 5, 1996 evaluation that two weeks earlier she had been walking two miles per day, and exercise helped alleviate her pain and numbness symptoms. Tr. at 201.
As noted above, the Sixth Circuit has stated that the ALJ is to be afforded some measure of difference by the district court when assessing a credibility finding. The Court finds that there is ample evidence in the record to support the ALJ's credibility findings in this case.
The question remains, however, whether substantial evidence supports the finding that the plaintiff could perform her previous work. Such an evaluation requires a comparison of the plaintiff's residual functional capacity and the demands of former jobs. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). "This assessment of your remaining capacity for work is not a decision on whether you are disabled, but is used as the basis for determining particular types of work you may be able to do despite your impairment(s)." 20 C.F.R. § 404.1545(a). The ALJ, with the assistance of a vocational expert, found that the plaintiff's previous work was semi-skilled and required a "light" exertional effort. According to 20 C.F.R. § 404.1567(b), "light work"
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
The plaintiff argues in her brief that the limitations she described in her testimony would not allow her to perform light work, particularly her specific job as a bar maid and restaurant manager, during the relevant period. However, she points to no medical evidence in which any physician ever imposed any restrictions that would be inconsistent with light work, as defined in the regulations. The Court finds that the ALJ's determination that the plaintiff could perform light work, and thus the finding against her at step four of the sequential analysis, was supported by substantial evidence in the whole record.
Finally, the Court notes that several items of medical evidence in the administrative record are dated after the termination of the plaintiff's insured status. To qualify for disability insurance benefits, the plaintiff must not only establish the she is disabled, but also that she was insured within the meaning of the Social Security Act, and became disabled while enjoying insured status. See 42 U.S.C. § 416(i), 423(d)(1)(A); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). The plaintiff's insured status ceases after the last quarter in which she had twenty quarters of contribution into the Social Security system within a forty-quarter period. See 20 C.F.R. § 404.130(b). Medical evidence is thus relevant to prove a disability only while the claimant enjoyed insured status. Estep v. Weinberger, 525 F.2d 757, 757-58 (6th Cir. 1975). Medical evidence that postdates the insured status date may be, and ought to be, considered, but only insofar as it bears on the claimant's condition prior to the expiration of insured status. Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976) ("Medical evidence of a subsequent condition of health, reasonably proximate to a preceding time, may be used to establish the existence of the same condition at the preceding time."); Higgs, 880 F.2d at 863. The Magistrate Judge acknowledged this rule of law, but then found that the ALJ's "refusal to consider later medical evidence was proper." RR at 14. This is a curious finding, inasmuch as the Court does not find that the ALJ refused to consider any item of evidence. In fact, the ALJ recited evidence that post-dated the plaintiff's insured status, and gave it due consideration. Because the Court believes that the ALJ's determination at step four of the five-step sequential evaluation process, which directs a conclusion that the plaintiff was not disabled, was supported by substantial evidence, the plaintiff's arguments concerning the application of the Commissioner's Grid Rules is not pertinent and need not be considered further.
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the Magistrate Judge properly reviewed the administrative record and applied the correct law in reaching his conclusion.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt #12] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #15] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.